Britton v. Phillips , 16 Abb. Pr. 33 ( 1861 )

Ingraham, J.

The portion of the judgment which directed a restitution was a part of the judgment, and was authorized to be made a part of the judgment by section 369 of the Code, which provides that “if the order shall be made before judgment is entered, the amount may be included in the judgment.” As such it is to be appealed from as any other judgment for the payment of money, and the amount can be collected by an execution (2 E. D. Smith, 41), if not stayed on appeal. An undertaking given for enough to cover the amount awarded by way of restitution and costs, would stay proceedings as to the whole judgment without an order.

It would be different if the restitution had been ordered on a motion after the judgment; then the undertaking, on appeal, would not apply, and a stay of proceedings would be necessary.

I think the undertaking is valid, and the proceedings stayed.

Motion denied without costs.